Family Law and Divorce: More on how the Texas Child Support System Works

February 17th, 2011

Some common questions we receive from clients involved in child support disputes are answered, as follows, by the recently released opinion, In the Interest of N.T, by the Eighth Court of Appeals in El Paso:

Who decides how much child support payments are and what are some of the factors considered?

“The trial court has broad discretion in determining child-support payments. In re J.D.D., 242 S.W.3d 916, 919 (Tex. App. – Dallas 2008, pet. denied); Reyes v. Reyes, 946 S.W.2d 627, 629 (Tex. App. – Waco 1997, no pet.). Some of the factors a court may consider in assessing payments include the needs of the child, the ability of the parents to contribute to the child’s support, any financial resources available for support, and the amount of possession and access to the child. TEX. FAM. CODE ANN. § 154.123(b) (Vernon 2008). In calculating the net resources for purposes of determining child-support liability, the court may look to all wage and salary income, self-employment income, and other income being received. See Acts 1995, 74th Leg., ch. 751, § 41, eff. Sept. 1, 1995 (current version at TEX. FAM. CODE ANN. § 154.062(b) (Vernon Supp. 2010)).”

Does the person obligated to pay child support have to disclose his financial information and will the Court solely rely on that information?

“By statute, the obligor is required to furnish information sufficient to accurately identify his net resources and ability to pay child support. TEX. FAM. CODE ANN. § 154.063 (Vernon 2008); Garner v. Garner, 200 S.W.3d 303, 306 (Tex. App. – Dallas 2006, no pet.). Nevertheless, the trial court is not required to accept the obligor’s evidence of income and net resources as true. Garner, 200 S.W.3d at 308; Hardin v. Hardin, 161 S.W.3d 14, 23 (Tex. App. – Houston [14th Dist.] 2004, no pet.), judgm’t vacated, op. not withdrawn, No. 14-03-00342-CV, 2005 WL 310076 (Tex. App. – Houston [14th Dist.] Feb. 10, 2005, no pet.) (mem. op.). Indeed, the trial court may properly determine that an obligor has higher net resources than alleged based on testimony by the obligee and other evidence in the record. Burney v. Burney, 225 S.W.3d 208, 214 (Tex. App. – El Paso 2006, no pet.).”

Is the person obligated to pay child support required to find employment?

“The obligor who is qualified to obtain gainful employment cannot evade his support obligation by voluntarily remaining unemployed or underemployed. Eggemeyer v. Eggemeyer, 535 S.W.2d 425, 427-28 (Tex. Civ. App. – Austin 1976), aff’d, 554 S.W.2d 137 (Tex. 1977). Therefore, a trial court may order the obligor to pay child support beyond the amount the obligor’s income would ordinarily indicate if he could potentially earn more money but has intentionally chosen not to do so. See TEX. FAM. CODE ANN. § 154.066 (Vernon 2008); Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 826 (Tex. App. – Fort Worth 2007, no pet.).”

If there is a finding of parentage, can the Court retroactively award child support?

“Upon a finding of parentage in a paternity action, a trial court may order retroactive child support. See TEX. FAM. CODE ANN. § 160.636(g) (Vernon 2008). In ordering retroactive child support, the trial court is generally limited to awarding the amount due for the four years preceding the date the petition was filed. See TEX. FAM. CODE ANN. § 154.131(c) (Vernon 2008). Further, the trial court should consider the net resources of the obligor during the relevant time period in determining the amount of retroactive child support to be ordered. Id. at §154.131(b).”

See In the Interest of NT, Court of Appeals Eighth District of Texas – El Paso, No. 08-09-00063-CV, January 26, 2011.

Bird, Skibell, & Bohach practices in the areas of Family Law and Divorce Law.  Please contact us for a free initial consultation if you have a question about the Texas child support system.

Contract Law: What is Quantum Meruit?

February 11th, 2011

Share |



The Fourteenth Court of Appeals in Houston recently released an opinion in the case Bluenix Corp. v. Texas Construction Systems, Inc. Texas Construction Systems (TCS), a construction contractor, was hired by Bluenix to design and build a storage shed at a Bluenix facility in Houston. TCS spent 49.5 hours attempting to obtain a permit from the City of Houston, but was fired by Bluenix. TCS sued Bluenix for breach of contract and quantum meruit requesting foreclosure on a mechanic’s and materialman’s lien it placed on Bluenix’s property. Bluenix countersued for breach of contract. At trial, the jury found that neither party breached the contract but that Bluenix owed TCS $10,046.20 under quatum meruit. On appeal, Bluenix argues the trial court erred in submitting a quantum meruit question to the jury.

The Fourteenth Court of Appeals performed the following analysis of quantum meruit:

“Quantum meruit is an equitable remedy based on an implied promise to pay for benefits received. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990); Wohlfahrt v. Holloway, 172 S.W.3d 630, 634 (Tex. App.—Houston [14th Dist.] 2005, pets. denied). To prove quantum meruit, a party must show a) valuable services were rendered or materials furnished, b) for the person sought to be charged, c) the services or materials were accepted and used by the person sought to be charged, d) under such circumstances to reasonably notify the person to be charged that the party seeking recovery was expecting to be paid by the person sought to be charged. See Vortt Exploration, 787 S.W.2d at 944; Wohlfahrt, 172 S.W.3d at 634.”

“TCS plead[] quantum meruit, but Bluelinx contend[ed] it should not have been submitted as a matter of law because an express contract exists between the parties. [The Court] disagree[d]. A party may recover in quantum meruit when there is no express contract covering the services or materials furnished. See Black Lake Pipe Line Co. v. Union Constr. Co., 538 S.W.2d 80, 86 (Tex. 1976); Coastal Chem, Inc. v. Brown, 35 S.W.3d 90, 101 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The existence of an express contract does not preclude quantum meruit recovery for services or materials that are not covered by the contract. Black Lake, 538 S.W.2d at 86; Beverick v. Koch Power, Inc., 186 S.W.3d 145, 154 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Coastal Chem, 35 S.W.3d at 101.”

“Bluelinx argue[d] in its brief that the hours [TCS] spent working on the permit process are not compensable via quantum meruit because obtaining a permit is within the scope of work covered by the contract. [The Court] agree[d] with Bluelinx that the plain language of the contract includes [TCS]’s work to procure the permit. The contract requires TCS “to obtain all licenses and permits” and to “furnish all labor, materials, services, [and] supervision” necessary to perform its duties under the contract. This language unambiguously requires TCS to furnish all labor and supervision necessary to obtain the permit. [A representative of TCS] testified about his expectation to be paid for the hours he spent obtaining the permit and his opinion of the industry practice, but such parol evidence cannot be used to create an ambiguity in an otherwise unambiguous contract. In re Polyamerica, LLC, 296 S.W.3d 74, 77 (Tex. 2009) (orig. proceeding) (stating that party’s beliefs regarding contract did not alter unambiguous language of the contract); Tellepsen Builders, L.P. v. Kendall/Heaton Assocs., Inc., 325 S.W.3d 692, 696 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“An unambiguous contract will be enforced as written and parol evidence will not be received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imports.”). Thus, the jury’s award cannot be sustained based on the hours [TCS] spent obtaining the permit.”

See Bluenix Corp. v. Texas Construction Systems, Inc., Fourteenth Court of Appeals-Houston, January 27, 2011 (Cause No. 14-09-00237-CV). 

Bird & Skibell, PC is a full service civil litigation firm that represents individuals and businesses involved in contract disputes.  Please contact the Firm if you beleive you have a dispute that needs to be reviewed by an attorney.

Texas Durable Powers Of Attorney & Medical Powers of Attorney

January 24th, 2011

Share |



Do healthy people in their twenties need to consider executing Durable Powers of Attorney?    This article discusses some of the benefits of having a Durable Power of Attorney, even for young people in their twenties who are healthy.  No one knows what can happen, so the responsible thing to do, even if you have little or no property, is to consider the execution of simple estate planning documents.

What is a Statutory Durable Power of Attorney under Texas law?   ”A person may use a statutory durable power of attorney to grant an attorney in fact or agent powers with respect to a person’s property and financial matters.”  See Section 490 of the Texas Probate Code.

What is a Statutory Medical Power of Attorney (also known as an Advanced Directive) under Texas law? This document appoints a person to “make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. Because ‘health care’ means any treatment, service, or procedure to maintain, diagnose, or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion. A physician must comply with your agent’s instructions or allow you to be transferred to another physician.

Your agent’s authority begins when your doctor certifies that you lack the competence to make health care decisions.

Your agent is obligated to follow your instructions when making decisions on your behalf. Unless you state otherwise, your agent has the same authority to make decisions about your health care as you would have had.”  See Section 166.163 of the Texas Health and Safety Code.

Bird & Skibell, PC attorneys implement Durable and Medical Powers of Attorney into estate plans that they draft and help execute.  Please contact the firm to discuss these and other estate planning documents.

Bankruptcy Law: What is the “Means Test”?

January 21st, 2011

Share |



One of the most important concepts involved in consumer bankruptcy filings is the “means test.”  What is it?

According to the U.S. Supreme Court in Ransom v. Fia Card Services, decided January 11, 2011, 

“Chapter 13 of the Bankruptcy Code uses a statutory formula known as the “means test” to help ensure that debtors who can pay creditors do pay them. The means test instructs a debtor to determine his “disposable income”—the amount he has available to reimburse creditors—by deducting from his current monthly income “amounts reasonably necessary to be expended” for, inter alia, “maintenance or support.” 11 U. S. C. §1325(b)(2)(A)(i). For a debtor whose income is above the median for his State, the means test indentifies which expenses qualify as “amounts reasonably necessary to be expended.” As relevant here, the statute provides that “[t]he debtor’s monthly expenses shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor’s actual monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal Revenue Service .”

Please Contact a Bird & Skibell, PC attorney if you are thinking about filing for Bankruptcy under Chapters 7 or 13 in the Dallas/Fort Worth Area.  

We are a debt relief agency.  We help file for bankruptcy relief under the Bankruptcy Code.

Dallas County Wrongful Death Case

January 17th, 2011

Share |

A Garland couple filed a wrongful death lawsuit against the Sky Ranch in the 95th District Court in Dallas County this week.  The Sky Ranch is a 93 acre facility that hosts students to teach them about biology, history, physics and other subjects in an outdoor setting.  The Garland couple allege that their son was struck on the head by a falling tree while sitting on a bench at the Sky Ranch during a school outing in December.  The boy died two days later at Children’s Medical Center in Dallas.  The lawsuit alleges that the Sky Ranch was negligent in keeping its property safe.  To read the article, go to this link.

Bird & Skibell, PC is a full service civil litigation firm.  The Firm offers a free initial consultation for personal injury and wrongful death cases and will consider taking such cases on a contingency basis.  Please contact a Bird & Skibell, PC attorney if you have any questions about a personal injury or wrongful death case.

Is Child Support Fair in Texas?

December 13th, 2010

Share |



The child and spousal support system in Texas is being scrutinized by the national media because of the  Tony Parker and Eva Longoria divorce.  The linked article, about the divorce, briefly discusses how child support is determined under Texas law.

How child support is determined is outlined in Section 154 of the Texas Family Code and  the chart contained in Section 154.125 generally is used to help calculate the amount of child support the obligor (person owing child support) will be ordered to pay by the court, as follows:

CHILD SUPPORT GUIDELINES BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR

1 child           20% of Obligor’s Net Resources

2 children        25% of Obligor’s Net Resources

3 children            30% of Obligor’s Net Resources

4 children            35% of Obligor’s Net Resources

5 children            40% of Obligor’s Net Resources

6+ children           Not less than the amount for 5 children

However, if the obligor has children in more than one household then the court may look to the chart contained in Section 154.129, as follows:

MULTIPLE FAMILY ADJUSTED GUIDELINES

(% OF NET RESOURCES)

Number of children before the court

                 
    1 2 3 4 5 6 7
Number of 0 20.00 25.00 30.00 35.00 40.00 40.00 40.00
other 1 17.50 22.50 27.38 32.20 37.33 37.71 38.00
children for 2 16.00 20.63 25.20 30.33 35.43 36.00 36.44
whom the 3 14.75 19.00 24.00 29.00 34.00 34.67 35.20
obligor 4 13.60 18.33 23.14 28.00 32.89 33.60 34.18
has a 5 13.33 17.86 22.50 27.22 32.00 32.73 33.33
duty of 6 13.14 17.50 22.00 26.60 31.27 32.00 32.62
support 7 13.00 17.22 21.60 26.09 30.67 31.38 32.00

Net resources is determined pursuant to section 154.062.  Resources include: (1)  100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses); (2)  interest, dividends, and royalty income; (3)  self-employment income; (4)  net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and (5)  all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, unemployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.

Resources do not include: (1)  return of principal or capital; (2)  accounts receivable;(3)  benefits paid in accordance with the Temporary Assistance for Needy Families program; or (4)  payments for foster care of a child.  The court shall deduct the following items from resources to determine the net resources available for child support:(1)  social security taxes; (2)  federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction; (3)  state income tax; (4)  union dues; and (5)  expenses for the cost of health insurance or cash medical support for the obligor’s child ordered by the court under Section 154.182.  In calculating the amount of the deduction for health care coverage for a child under Subsection (d)(5), if the obligor has other minor dependents covered under the same health insurance plan, the court shall divide the total cost to the obligor for the insurance by the total number of minor dependents, including the child, covered under the plan.

Personal Injury: Jury Awards Damages to Man Burned by a Boiler

November 29th, 2010

Share |



The linked news article describes the result of a personal injury trial where the Plaintiff sued his former employer and a premises owner of an ethanol plant after he was severely burned by the steam from an industrial boiler while he was on the plant’s premises.  The Plaintiff was on the premises of the plant during a three day maintenance shut down in order to provide advice on the amount of chemicals to use to clean the boiler.  During his inspection he opened a hatch on the side of the boiler, causing steam to escape and burn him over much of his body.

The jury awarded the man $645,000, but during the five day trial, the Defendants argued that the man was partially liable. So the jury’s award was reduced by 30% to $451,000.

Bird & Skibell, PC represents parties involved in personal injury cases such car accidents, industrial accidents, and medical malpractice.  The Firm provides a free consultation to persons be believe they have been injured and can be contacted here.

Bankruptcy & Baby Boomers

November 17th, 2010

Share |



A study conducted by the Administrative Office of the Federal Court system reports that middle aged people (over the age of 45, but younger than 61) are increasingly accounting for a majority of the consumer bankruptcy filings.  In 2007 middle aged people accounted for 50% of the filings and recent statistics shows similar results.  The study looked back to 1994 and included filings in Chapter 7 and 13.  See the link.

Bird & Skibell, PC represents both debtors and creditors in Bankruptcy courts throughout North Texas.  Please contact the firm to discuss your case with a Firm attorney.

We are a debt relief agency.  We help file for bankruptcy relief under the Bankruptcy Code.

Family Law: What is a Parenting Coordinator and a Parenting Facilitator?

November 15th, 2010

Share |



The Texas Family Code allows Texas family courts to order parenting coordinators or facilitators in Sections 153.601 to 153.611.  Both persons are appointed by the court on its own motion or by agreement of the parties.  See Sec. 153.601. The goal of a parenting coordinator is to resolve parenting issues through confidential procedures, while a facilitator is tasked with resolving parenting issues through procedures that are not confidential.  See id.  A facilitator will develop a parenting plan to set out the terms of possession found to be in the best interest of the child.  See id. 

A parenting coordinator is appointed in “high-conflict cases” where the parents have demonstrated high levels discord and are having difficulty communicating.  See id.   In the appointments of either a parenting cocoordinator facilitator the court must find a that the case is either “high-conflict” or “good cause.”  See 153.605 and 153.6051.   

“The duties of the parenting coordinator are limited to matters that will aid the parties in: (1)  identifying disputed issues;(2)  reducing misunderstandings; (3)  clarifying priorities; (4)  exploring possibilities for problem solving; (5)  developing methods of collaboration in parenting; (6)  understanding parenting plans and reaching agreements about parenting issues to be included in a parenting plan; (7)  complying with the court’s order regarding conservatorship or possession of and access to the child; (8)  implementing parenting plans; (9)  obtaining training regarding problem solving, conflict management, and parenting skills; and (10)  settling disputes regarding parenting issues and reaching a proposed joint resolution or statement of intent regarding those disputes.”  See 153.606.

“The court shall specify the duties of a parenting facilitator in the order appointing the parenting facilitator.  The duties of the parenting facilitator are limited to those matters described with regard to a parenting coordinator under Section 153.606(a), except that the parenting facilitator may also monitor compliance with court orders.”  See 153.6061.

Bird & Skibell, PC represents clients in divorces and suits affecting the parent child relationship.  The attorneys at Bird & Skibell, PC regularly work with its clients on getting the correct parenting cocoordinator or facilitator appointed in its cases.  Please contact the firm for a free initial consultation regarding the merits of your family law case.

Probate: Opening of an Estate Involving Abraham Lincoln

October 15th, 2010

Share |



This news article, reports that a Connecticut Probate Judge opened an estate stemming from the death of Ruth Trost Welles, who died in 1955.  Property originally belonging to Gideon Welles may have been improperly sold and not properly distributed to the heirs of Ms. Welles because the inventory filed in her Estate was improper.  Gideon Welles served as Abraham Lincoln’s Secretary of the Navy during the Civil War and passed down some 713 notes written by Lincoln  other artifacts, like a a rifle;  according to the Probate Judge, these items should have been listed on inventory of the Estate of Ruth Welles.   The Welleses are accusing another family, the Brainards, of selling off the artifacts in this probate dispute. 

Although this is an extreme, if not unique circumstance, it does show that people should carefully plan their estate for their death and make informed decisions with the help of an attorney who has experience administering estates and drafting wills and other estate planning documents.  Bird & Skibell, PC represents individuals in probate proceedings, including the probate of a will and administration of an estate.  We regularly are involved in probate proceedings in Dallas, Denton, Collin, and Tarrant Counties.  Please contact us if you have any questions regarding the probate process in Texas.